Horton v. Ammons

• Citation: 186 S.E.2d 469,125 Ga.App. 69
• Decision Date: 28 October 1971
• Docket Number: No. 3,Nos. 46417-46419,s. 46417-46419,3
• Parties: R. L. HORTON v. O. L. AMMONS, Sr., et al. Embry SMITH et al. v. O. L. AMMONS, Sr., et al. GREYHOUND LINES, INC. v. O. L. AMMONS, Sr., et al
• Court: Georgia Court of Appeals

Page 469

186 S.E.2d 469

125 Ga.App. 69

R. L. HORTON v. O. L. AMMONS, Sr., et al.

Embry SMITH et al. v. O. L. AMMONS, Sr., et al.

GREYHOUND LINES, INC. v. O. L. AMMONS, Sr., et al.

Nos. 46417-46419.

Court of Appeals of Georgia, Division No. 3.

Oct. 28, 1971.

Rehearing Denied Nov. 19, 1971.

Certiorari Granted Jan. 19, 1972 in No. 46417.

Certiorari Denied Jan. 19, 1972 in No. 46419.

Cowart, Sapp ,& Gale, G. B. Cowart, Robert A. Sapp, Burnswick, for horton.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for Smith.

Neely, Freeman & Hawkins, J. Bruce Welch, William Cetti, Atlanta, for Greyhound.

J. S. Hutto, Eugene Highsmith, Brunswick, for Ammons and others.

Syllabus Opinion by the Court

HALL, Presiding Judge.

All the defendants in a personal injury action appeal from the judgment and from the denial of their motions for judgment n.o.v. and for a new trial.

Plaintiff and her husband brought suit for injuries she sustained when a 25lb. light fixture fell on her while she was at work. They named as joint defendants her employers, the electrical contractor who had installed the fixture and the owner of the building. The respective allegations of negligence were: that the employers, who had personally put up a new ceiling, had disignated the place for the fixtures to be mounted with knowledge there was no joist at one end to bear the weight; that the contractor, in violation of the Electrical Code, attached one end of the fixture to nothing but a thin batten nailed to the sheet-rock ceiling after he was unable to find a joist; and that the owner-lessor, because of its contractual right of entry, should have discovered the defective installation in making an inspection.

1. The lease between the owner and plaintiff's employers provided that the lessor could enter to view the premises but that only upon default of the lessee and after due notice could the lessor make repairs. The lessee agreed to make any repairs or renovations to the interior. The lessee orally told the lessor in general terms what he planned to do, i.e., paint, put in some lights, etc., but neither gave details nor submitted a plan. Both of the plaintiff's employers agreed that a representative of the owner had been on the premises after the renovations but neither could say whether he had been in the room where the fixture fell. There is no direct evidence of retained control over the premises by the lessor, but since it did not retain the right of repair except in the event of default, a surrender of possession may be inferred. The cases cited by plaintiffs concerning a lessor's liability to third parties all involved contracts in which the right of repair was expressly reserved to the lessor. In any event, the lessor's retention of the right to enter, inspect and repair is not inconsistent with a full surrender of possession to the lessee. See Leonard v. Fulton National Bank, 86 Ga.App. 635, 72 S.E.2d 93. The same is true of the requirement that the lessee submit to the lessor plans for any improvements he wishes to make. Where the lessee has exclusive control of the premises, the lessor has no duty to inspect or any liability for defective construction or installation not made under his direction. Scarboro Enterprises, Inc. v. Hirsh, 119 Ga.App. 866, 169 S.E.2d 182; National Distributing Co. v. Georgia Industrial Realty Co., 106 Ga.App. 475, 127 S.E.2d 303; Dobbs v. Noble, 55 Ga.App. 201, 189 S.E.2d 694. If there exists no absolute affirmative duty to inspect for any and all latent defects prior to leasing premises (Spires v. Fitzsimmons, 106 Ga.App. 22, 126 S.E.2d 244) then there surely is no such duty after turning over possession. We believe the trial court erred in denying this defendant's motion for judgment n.o.v.

Plaintiffs raise the point that since the trial court never formally ruled on this defendant's motion for directed verdict (which was made twice and deferred by the court) it is precluded from even bringing a motion for judgment n.o.v. We believe this is being overly technical. The court told counsel it would review some law in the afternoon before is made a decision on the motion. The record is silent on whether the court ever ruled. Nevertheless, by allowing the case to go to the jury, accepting its verdict, and entering judgment, the court tacitly denied the motion. For the analogous situation of overruling an objection by inaction, see Lynn v. State, 140 Ga. 387(8), 79 S.E. 29; Heinz v. Backus, 34 Ga.App. 203(2)(6), 128 S.E. 915.

2. Both the employer and the contractor raise the issue of the sufficiency of the evidence, each contending that if one were found negligent, the other would not be held liable. The evidence as presented would have authorized the jury to find that each was in fact negligent and that their respective acts were contributing causes to the injury.

3. Both these defendants also contend that certain of the court's remarks to the jury were coercive. Not only were the remarks within the court's province to urge the jury to make an effort to agree on a verdict, but neither of these defendants objected at the time or asked for a mistrial. See Yancy v. State, 173 Ga. 685, 160 S.E. 867; Palmer v. Stevens, 115 Ga.App. 398(5), 154 S.E.2d 803.

4. Special grounds 1 and 2 of the contractor's motion for new trial were not raised at the time of trial for the court's consideration and ruling. They will therefore not be considered for the first time here. Greene v. McIntyre, 119 Ga.App. 296, 167 S.E.2d 203; Palmer v. Stevens, supra, 115 Ga.App. 398(8), 154 S.E.2d 803.

5. The employers contend the court erred in charging Code § 54-123(b) (employer's duty as to safety), because the evidence did not show they had the minimum number of employees to come under the statute. However, in making objection to the charge, their counsel merely stated that they did not come within the purview of the statute. When the court asked, 'and you're sying that this is not applicable to an employer and employee?', counsel simply answered, 'I say it doesn't apply to the defendants Smith in this case.' We believe this objection was not as reasonably definite as the circumstances permitted. We presume counsel knew at the time he objected why the statute did not apply, and if he had deigned to inform the court, it would undoubtedly have withdrawn the charge. Nevertheless, there was no harm done since the standard of care set out in the...